Corporate Manslaughter and Corporate Homicide Bill

My Lords, I declare my interest as president of the All-Party Group on Occupational Safety and Health, partner in the national commercial firm of solicitors, Beachcroft LLP, and the other entries in the register. We have heard 23 speeches of high quality; the standard, I believe, having been set by the Minister in her most comprehensive outline of the Bill. We also have been treated to a new team on the Front Bench of the Liberal Democrats, with the noble Lords, Lord Cotter and Lord Lee of Trafford, whom we welcome to this debate and look forward to working with in Committee. Before I turn to the substance of the Bill, perhaps I may echo the words of my noble friend Lord Henley in drawing attention to its most inadequatetreatment at Report stage in the other place. More than 20 amendments to it were passed without any debate. If any Bill demonstrates the value of this Chamber, it is this Bill—because we know the problems caused by timetable Motions. This Bill demonstrates all the pitfalls of such Motions. That is why we will probably have a lengthy Committee stage as we seek to do the work of the other place for it. There should have been proper debate about some very significant amendments but there was not. Therefore, as a result, ours is an increased responsibility. Various noble Lords have made reference to some of the cases that have added incrementally to the aggravated sense of injustice. For many years, a view has grown up that bodies corporate, as well as individuals, should be held to account where deaths occur as a result of their actions. The shadow of the ““Herald of Free Enterprise”” has been over this debate. The speech made by the noble Lord, Lord Clinton-Davis, gave that instance all its tragic connotations. Because of his many years as a shipping Minister, that tragedy probably meant much more to him than to many others. He gave us a reminder of the horrific nature of what happened. We now wait to hear the noble and learned Lord the Advocate General for Scotland—I am very grateful to the noble Earl, Lord Mar and Kellie, for reminding us of the correct title—respond to the many points that have been made. But there is a broad consensus behind the Bill in this House and elsewhere. However, I should put on record the fact that it was not my party’s view that this type of Bill necessarily represents the best way of addressing the particular problems that many have outlined. We are speaking, in essence, of health and safety matters. My party believes that the existing corpus of law in that area would have given ample opportunities for the kind of reform we all seek. We could have built this new edifice upon the rather stronger foundations of health and safety legislation which, of course, goes back some considerable time. The Bill was originally introduced by my party back in the early 1970s but brought to Royal Assent by the subsequent Labour Government. However, we are where we are. As the noble Baroness, Lady Turner of Camden, and the noble Lord, Lord Wedderburn, reminded us, there is a long history here. I understand that a Bill of this kind was a part of the legendary—one is sometimes tempted to say ““mythical”” in view of the fact that it has neverbeen published—Warwick agreement. It would be enormously helpful if the noble and learned Lord could place a copy of this agreement in the Library because, as I understand it, it has never been published and yet it is constantly referred to. But we must proceed on the basis that it said something that originated in this Bill. For that, I suppose, I am a supporter of that aspect of the Warwick agreement, if only I could ever see it. Perhaps the noble and learned Lord could also assist us by telling us where the coroners Bill is. That is an important aspect, as the noble Lord, Lord Ramsbotham, pointed out, but no one knows where it is. If the noble and learned Lord could indicate what has happened to it, that would be very helpful. I also look forward to hearing the noble and learned Lord’s response to the noble Earl, Lord Mar and Kellie, on whether this is an area of dodgy and rickety constitutional significance. Having accepted the broad principle of the Bill, I should like to raise a number of practical issues, issues of detail, and also several broader issues of principle that give some cause for concern. Foremost among those, as pointed out by my noble and learned friend Lord Lyell of Markyate and by the noble Lord, Lord Lee of Trafford, is the highly uneven application of the Bill as currently drafted. It would apply across a wide, almost universal front within the private sector but across a far narrower range of activities in the public sector. As my noble friend Lord Henley has already pointed out, the organs of the state will be responsible, and fully accountable in terms of possible prosecutions under this legislation, only to their employees and their tenants but not to those who use their services. We look forward to hearing the justification for that, but we will wish to explorethe boundary very closely in Committee. In contrast, the private sector will have all the additional responsibilities set out in Clause 2(1)(c)(i) to (iv). I know that fining bodies, in some senses, represent little more than a vastly expensive way of robbing Peter to pay Paul, but the Bill in its present form seems iniquitous. As many speakers have pointed out, the Bill must be about prevention as well as reparation. Indeed, many noble Lords have said that success will be achieved if we minimise the number of fatalities that result from accidents in the workplace. Many other points have been touched on during the debate. Colleagues in all parties in another place, and here, are understandably exercised about the exclusion of deaths in custody from the ambit of the Bill. It is a huge responsibility to imprison a fellow citizen, and we must ensure that all the possible reasonable systems and precautions are in place to prevent unnecessary and avoidable deaths in custody. I confess that I have not thus far been even remotely persuaded by arguments against adding these deaths to the Bill. In fact, I found very persuasive the arguments of the noble Baroness, Lady D’Souza—drawing on her experience on the independent monitoring board for Wormwood Scrubs—the noble Lord, Lord Parekh, the noble Baroness, Lady Stern, and the noble Lords, Lord Ramsbotham, Lord Judd, and Lord Lee. The noble and learned Lord will have to come up with some convincing arguments which we have not yet heard from any noble Lord if he wishes to persuade us to omit deaths in custody from the ambit of the Bill. Within the private sector, too, we must ensure that the legislation applies right across the necessary waterfront. There are some blatant loopholes. As a member of a partnership, I fail to see why they and other unincorporated bodies should be outside the scope of the legislation. The noble Baroness admitted that everyone would like to explore the boundary a little further, and I welcome that. I was grateful to the noble and learned Lord, Lord Lloyd of Berwick, for raising a very important point about limitation, which we must explore in Committee. The Ministry of Defence has also come in for some close attention. We are all very grateful to the noble Lord, Lord Tyler, for reminding us in greater detail, as did other noble Lords, including the noble Lord, Lord Parekh, of the sad case of Steven Roberts. We must learn the lessons that need to be learnt from that terrible case. I think that Ministers have been right to hold out against attempts in another place to change the thrust of this major reform by moving away from its primary purpose, the creation of a new corporate offence. To add individual sanctions to the Bill would dilute it and confuse people as to the intentions of Parliament. But I agree with the noble Lord, Lord Sawyer, with his background in UNISON, and the noble Lord, Lord Hoyle, with his background in Amicus and related trade unions, that individuals guilty of gross misconduct must not be allowed to feel that they will henceforth have nothing to fear but an hour or two in the dock, after which their organisation may have its knuckles rapped but they will get away scot-free. Measures for disqualification were much discussed in another place but my gut feeling is that this is probably best done through existing laws. The crucial point here is that we must be clear not only in our own mind but in the letter of our legislating that we do not intend through this Bill to reduce the incentives on individuals to keep their house in order. As I understand it, all existing sanctions will remain in place and nothing in the Bill should be construed as precluding simultaneous or subsequent action under the 1974 Act or, indeed, any other Act already on the statute book. We must, however, take time to consider secondary criminal liability and I look forward to debating this in Committee with the noble Lord, Lord Wedderburn. Action against a firm for corporate manslaughter should be entirely consistent, where applicable, with action against individuals under health and safety law, but I am not sure that the Bill makes that sufficiently clear yet. If we are indeed considering twin-track prosecutions of this kind, as set out by the noble Lord, Lord Whitty, and others, against firms for corporate manslaughter and against individuals for gross breaches of health and safety legislation, should we not put that explicitly in the Bill? It would be a matter for regret if, in passing this legislation, we brought about an avoidable and unintended fall in the number of prosecutions under the 1974 Act. Other points to which we shall return at later stages include the possibility of requiring firms to have a named director who is responsible for health and safety, an explicit requirement that all contractors and sub-contractors observe the same standards of health and safety, and naming and shaming. I agree with the noble Baroness, Lady Turner of Camden, that we must make sure that we have effective sanctions. I was very attracted by points made in another place about recording instances of prosecution under this legislation on the companies register. Some colleagues have even mooted the possibility of allowing the courts to demand that companies which are guilty of corporate manslaughter advertise the fact that they have been so indicted through some public medium at their own expense. I suppose that this is the modern-day equivalent of the stocks and public humiliation, and it has its attractions. I look forward to a discussion of that possibility and the idea of corporate probation. The noble Lord, Lord Rosser, put forward various options for the sanctions necessary to deal with gross negligence resulting in death. We all agree with him that the object of the Bill is to improve safety and prevent accidents. We benefited from the business experience of the noble Lord, Lord Cotter, who stressed the need for simple common sense. I liked his phrase ““act now or else””, which communicates a clear message. He reminded us—perhaps the Minister will refer to this—that Mr Sutcliffe had referred in another place to the recent report of Professor Macrory’s review of regulatory enforcement. Mr Sutcliffe said that the Government would have to consider the detail of the suggestions for new criminal sanctions which are put forward in that report. We look forward to hearing the Government’s responses on that and will no doubt hear more in Committee. We benefited also from the rather chilling examples of my noble friend Lord James. He could have shared 12 of them with us, but he specified four. We have to go through them to learn what lessons we can. His point that the legislation has to be simple and clear so that everyone can understand their responsibilities was so important. We benefited from the legal experience of the noble Lord, Lord Brennan, who also stressed the need for a clear and effective definition, and effective remedial orders. It has been a very interesting debate, which many of us now want just to study. So many points were raised by noble Lords that we have to make sure that we debate them thoroughly and properly in Committee. I hope that the Committee stage will be constructive and free from partisan rancour. If I am wrong, noble Lords should attribute that to a surfeit of seasonal good will on my part. What one can say with confidence is that this Bill will be passionately debated and sincere attempts will be made to amend and improve it substantially. We want a different corporate culture, both here and in Scotland. We were fascinated by the discussions between the noble and learned Lord, Lord Boyd of Duncansby, and the noble Earl, Lord Mar and Kellie. No doubt we will hear more of that in Committee. I have my doubts, although my hands are tied, about whether this is the sort of Bill that should go to a Grand Committee—the noble Lord, Lord Wedderburn, made that point—but others have made those decisions. The Committee stage will no doubt start on Thursday 11 January, when we return, if the House approves the Motion. There is an old saying that hard cases make bad law, and there have been some very hard cases of firms falling grossly short of their obligations to employees and customers, resulting in appalling loss of life that could and should have been easily avoided. We on these Benches welcome any attempt to improve the system for preventing such tragedies, but the Bill as it stands at the moment is an imperfect vehicle. We could start out trying to save lives and end up with just another stealth tax. But we are not going to do that. I look forward to working with Ministers to ensure that, for once, hard cases result in a law that is workable, just and, as the noble Lord, Lord Berkeley, put it, effective, and one that leads to prevention as well as cure.